Disgruntled Family Litigants: Is Judge-Shopping an Option?

by familyllb on June 25, 2015

Disgruntled Family Litigants: Is Judge-Shopping an Option?

Imagine this scenario: You and your Ex go to family court to get a ruling on which of you gets custody of your children. After a full hearing, the judge rules against you: Instead of getting the custody order you want, you get only access to the children on specified terms. You are unhappy. You launch and appeal, but are unsuccessful. When it comes time to cooperate with access, you drag your feet and make things difficult.

What’s your next move?

According to a recent Ontario Court of Appeal decision, “judge-shopping” for a different judge (and hopefully a friendlier hearing venue) is not the answer.

In D.G. v. A.F. the high-conflict dispute between the separated parents as to custody and access of their children had led to a series of prior court decisions. Many of these were not in the mother’s favour, since they awarded or confirmed custody to the father, with supervised access to her. The mother’s position and approach, however, remained intractable. As the court put it:

At every opportunity, including this appeal, the [mother] has earnestly sought to have reversed the trial judge’s award of custody to the [father] and supervised access to the [mother]. In her factum, the [mother] raises concerns with the trial decision, showing that she does not accept the trial outcome despite the dismissal of her appeal. She seeks custody of the children, which is not a remedy that is open to her on this appeal; she has been unwilling to work within the custody and access regime that resulted from the trial.

As the court alluded, the mother was not co-operating with the proposed access scheme: she did not follow-through on providing suggested names for access supervisors, and did she comply with other judge-imposed conditions for making her access to the children possible. As one of the earlier motion judges put it:

[N]o matter how [the mother] feels about the custody and access orders in this proceeding she must comply with my Orders so that she can see her children. [The father] wants her to see the children. He understands that it is important for the children to have a relationship with their mother. So much so that he has put forward his own suggestions for an access supervisor.

Yet in addition to dragging her feet and depriving the children of access to her, the mother continued to challenge the earlier custody/access ruling in numerous aspects. Her latest point of contention focused on the fact that on an earlier motion, the judge (who happened to be a woman) had taken took control of or “remained seized of” the court file, ordering that any future court appearances in the matter be heard by her alone. As the court explained:

The [mother] seeks to escape the motion judge’s “influence”. She argues that the motion judge had no basis for seizing herself of the case indefinitely. The [mother] argues that this effectively puts the motion judge in a conflicting position because any motions to change will inevitably involve the motion judge in reviewing her own decisions. The appellant fears that the motion judge will not treat her fairly.

The court rejected the mother’s line of argument, however. Under the Ontario Family Law Rules courts are actively encouraged (and indeed in some scenarios, mandated) to engage in case management; this was particularly important in a case like the current one, since “the frequent resort to the court in high-conflict cases would otherwise rapidly consume too many judicial resources, as judge after judge is forced to learn the details of an ever-burgeoning file.”

After citing several cases dealing with procedural limitations on the judge taking control of the matter (none of which were found to apply here), the court also rejected the allegation that the motion judge had been biased against her, or that she had been unfair in awarding costs to the father in the circumstances.

The Court of Appeal ended the judgment by encouraging the mother to simply accept the situation and comply with earlier rulings. It said:

I encourage the [mother] to comply with the access orders and to make the required arrangements as soon as possible so that, with successful experience, more normal access arrangements could be justified. There is no short cut available to the [mother].

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com

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FamilyLLB is written by Russell Alexander, a divorce and family law lawyer based in Ontario, Canada. For nearly twenty years, Russell's firm has helped clients who are going through a separation or divorce. You can find more of Russell's online commentary via Twitter, Google+, LinkedIn, or on the firm's Facebook page.